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ARGUxMENT 

o 

B Y 

COL. S. C. STAMBAUGH. 

COUNSEL FOR PLAINTIFF: 



LIVERED 0.\ THE SEVENTH ^•0VE>1BER, 1S43, BEFORE THE BOARD OF 
COMMISSIONERS. UNDER THE CHEROKEE TREATY OF IS35--36, 



IN THE CASE OF 



J K, ROGERS, A CHEROKEt:, 



AGAEVST 



THE UNITED STATES, 



FOk 



SPOLIATIONS COMMITTED BY THE STATE OF GEORGIA IN DIS- 
POSSESSING HIM OF A GOLD-MINK. 



WASHINGTON: 

BLAIR AND RIVES. PRINTERS. 

1S43. 



PREFACE. 



In the publication of this Argument, the claimants under the treaty discharge 
a duty to themselves; gratify the expressed wish of intelligent citizens; and, are 
persuaded, perform an acceptable service to tlio public. 

The sirfjjects discussed are of deep interest to the parties — the Indians on 
one side, and the people of the United States, acting through the Government, 
on the other; every citizen, therefore, should desire to be informtnl and 
understand, in order to the award of justice. But it is a misfortune tu the 
complainants that the sources of information are accessible to few. This argu- 
ment is given to the public, to correct measurably that evil. Indian rights are here 
examined upon principles incontrovertible, because recognised as universal law 
by the great jurists of England and America. The statutory enactments and 
the judicial decisions of the United States, applicable to the subject, arc given 
with perspicuity and in fullness of detail. 

A confidence is felt that the reader of this argument will rise from its perusal 
with increased knowledge, more just sentiments, and with a conviction of its 
ability. Competent judges pronounce it an evidence of much research, of a 
mind clear in method and logical in conclusions; entitling the author to a meed 
of praise, and a claim for distinction, in this department of legal knowledge, 
among the first lawyers of the country. 

Washington, Nov. 26, 1843. 






.^.^ -i-*!- 






A K G U M E N T 



la the case of Johnson K. Rogers, a Cherokee, 
who has submitted a claim against the United 
Slates fur damages, arising out of spulUuioiis com- 
mitted upon his property by the Siaie and citizens 
of Georgia, in forcibly ejecting liira from posses- 
sion of a goldmine in the year 1830, and preventing 
him from retaking possession of the same, by vir- 
tue of a bill of injunction, I beg leave to offer the 
following remarks for the consideration of this 
honorable board: 

This claim is presented under the 10 h article of 
the treaty of 1835; the latter clause of w hich reads 
as ft)llows: "The sum of three hundred thousand 
dollars is hereby set apart to pay and liquidate the 
just claims ot the Cherokees upon the United 
Slates for spoliations ut every kind that have not 
been already saii^fied under farmer treaties." 

Spoliation and depredation are synonymous in 
their meaning. They are defined lo be, "an act of 
plundering; a robbery; waste; consumption; a ta- 
king away, by any act of violence, the properly of 
another." The testimony adduced, I ajjprehend, 
clearly and ineonteslably proves that the prop»-'rty 
of the claimant, of which he was legally and 
peaceably in pos^ession in the year 1830, was ille- 
gally taken from him, and exhibits an "act of 
plundeiing" which constuutes a strong case of 
spoliation contemplated by the 'Jih, 10th and iGih 
articles of the treaty. If the Board, upon a care- 
ful examination of the testimony already adduced, 
and the law bearing upon the ca>e, which 1 shall 
now cite, entertain this opinion, we can claim an 
award for the full amount of which we have been 
despoilt'd; as it is clearly a claim brought wiiiiin 
your exclusive jurisdiction by the 17th article ol 
the treaty, which makes it your duly to "examine 
and adjudicate all claims arising under or pro- 
vided lor" in the several articles of that in>;ru- 
ment. 

The first points, then, to be established, are the 
occupanai of the land, upon wkich this goldmine was 
located, by the Cherokee tiibe of Indians in the year 
1830, and dvring the period for which Mr. Rogers 
claims for being dispossessed; the nature of the title 
under which they held their lands; that the mine- 
rals in the bowels of tlie earth were a portion of the 
same property and held by the same tenure, and 
that no Slate of this Union cmdd legally dtvest 
them of these lands; and that iJwir title to them could 
not be extinguished except by the treaty or conven- 
tion entered into according to law. 

In the first place, I will call the attention of 
the Board to the able opinion of Judge Chryton 
of Georijia, delivered in the case of that State 
against Cana-too, a Cherokee Indian, "committed 
to jail upon a charge of digging gold in that part 
of the Cherokee nation not yet ceded," and 
who was brought before the court by wni ol 
habeas corjms in the year 1832, and discharged 



Thi> opinion is now submitted for the considera- 
tion ot the Board; and upon the law and argument 
therein set forth, I might with safety rest for the 
establishment of the points which 1 have made, and 
show that the title of occupancy is the oldest, and 
throws as much security around the original occu- 
pant as any known to Christendom. I will, how- 
ever, in my own humble manner, bring before you 
the treaties and the law upon which we base our 
claim; and then ask the judgment of this Board 
on the imporlant ijuesiion at is>ue. 

I will, in the outset, assert one universal princi- 
ple, which recognises but two ways of acquiring 
the title from Indians — that is, by '^force or jm.r- 
chase." The first has never been resorted to by the 
British or American Governments, since the first 
discovery of this country. Although it may have 
been indirectly threatened by the authorities of a 
Stale, the overt act was not committed; and the al- 
ternative mode — thai of purchase, adojited first by 
the King of England — has never been departed 
from. The first treaty concluded between the 
United States and the Cherokee Indians was in the 
year 1785 — two years after we had secund our 
independence as a separate nation. That treaty 
recognises the Cherokee title to their lands, in the 
same manner that it was recognised by the British 
Governmeni; and the intercourse law, enacted by 
Congress m the year 1802, prescribes the mode by 
which they may be purchased. This law is in- 
corporated in the intercourse act of 1834, now ex- 
tant, (see scc'ion 12,) and enacts as follows: "That 
no purchase, grant, lease, or other conveyance of 
lands, or of any title or claim thereto, from any 
Indian nation or tribe of Indians, shall be of any 
validity in law or equity, unless ihe same be made 
bv treaty, or convention, entered into pursuant to the 
Constitution." [See '2d clause, 2d article of Ihe 
Constitution ] Another clause of the same section 
of the lav/ makes it a penal ofi>nce for any per- 
son, not employed under the authority of the Uni- 
ted Stales, to attempt to negoliale such treaties; 
and, apparently for the purpose of prohibiting the 
assumption of improper power by any State, the 
same section is made to contain the following pro- 
viso : "That V shall be lawful for the agent or 
agents of any Stale, who may be present at any 
treaty held with Indians, under the authority of 
the T'nited States, in the fjresence and with the 
apf)robation of the commissioners of the United 
States appointed to hold the same, to propose to 
nnd adjust with the Indians the compensation to be 
made for their claim lo lands within such State, 
which shall be extinaruished by treaty." 

The 11th section of the same act, which is also 
adopted from the law of 1802, provides as follows: 
"That, if any person shall make a selilen.ent on 
any lands belonging, secured, or granted by treaty 
with the United Stales, to any Indian tribe, or shall 



survey, or attempt to survey, such lands, or desig- 
nate any of the boundaries, by marking trees, or 
otherwise, such offender shall forfeit and pay the 
sum of one thousand doTlars." 

I will likewise call the allenlion of ihe board to 
the 16th section of the same law, which enacis: 
"That^vhele, in the commission by a whiti" jierson 
of any crime, offence, or mindameanur , withm the 
Indian country, the pruperty of any friendly Indian 
is taken, injured, or didroycd, l.!ie person ci-nvicied 
of said oftence shall be sentenced to pay to such 
friendly Indian, to whom the property may belons, 
or whose peison may be injured, a sum equal to 
txoice the just value of the propeny so laken, in- 
jured, or destroyed; and, it such offender shall be 
unable to pay a sum at least equal to the jusi value 
or amount, whatever such payment shall tall .short 
of the same -hall be paid out of the treasury of the 
United Stales." 

The 2"2d --ecti.m of the same act provides: "That, 
in all trials about the right of property, in which 
an ladiayi may be a party on one side, and a ivhile 
person on the other, the burden of proof shall rest 
upon the wliite person, whenever the Indian shall 
make out a presumption of title in himself, from 
the fact of previous ownership." 

The 23d section of the same act, having refer- 
ence to the provisions I have cited, makes ii law- 
ful for the President of the United S:ates to employ 
military force to remove all persons found in the 
Indian country, in violation of this act; and the 
Constitution enjoins it upon him, as a duty, to cause 
all laws 10 be I'auhfully executed. 

I have quoted thus copiously from the intercourse 
law, for the purpose of presenting, in one view, ihi- 
manifest determination of the law-makers at. that 
time to protect the Indians in their righis, so far as 
legislative enactment could protect them. Ii was an 
ordmance adopted early in our national existence, 
when our relations with the Indians, tonnd in the 
occupancy of a large portion ol the country, were 
new and fresh, and the intentions of our Govern- 
ment and people towards thein were pure and dis- 
interested. The Indian title was then held sacred; 
and the mod.e was prescribed bv which alone it 
could be exiinsuished. The Constitution of the 
United States gives the President and Senate the 
power of negotiating treaties vnlh Indian tribes, as 
with othernaiion<; and, in pursuance of that clause. 
Congress passed the act of 1802, providing for the 
"purchase of their lands," and, at ihe same time, 
assumed a guardianship over their alfairs ijeneral- 
ly, not atilhorized by the Constitution; bu', with re- 
spect to the Cherokees, by virtue of a right conceded 
by the 9th article of the treaty of Hopewell, con- 
cluded in the year 1785, which is m the following 
words: "For the 6«?je^i!and c(;??(/(?r< of the Indians, 
and for the prevention ofiiijuries or oppressions on 
the part of the citizens or Indians, the CoPCfess 
of the United States shall have the sole and ex- 
clusive ri^hl of re^iulatins: the trade wiih the In- 
dians, and mauaginu all their affairs in such man- 
ner as they ;hink proper." 

Here the relationship of irwrw^/rt/f and 7/v/?y/ ori- 
ginated between the United States andtlip Cherokee 
nation. It is a concession made by the weak and help- 
less to the strong nnd powfTtuI; by the unuitored 
trembling cliild of thf fote-t, to the yi'Ung Hercules 
who had just grappled with and oveithrown the co- 
lossal power of England, and now stood erect in ail 
his pride and glory, fresh from the conflict. SfV- 
enteen years after the ratification of the treaty here 
referred to, the intercourse law of 1802 was enact- 



ed; and the portion I have quoted has remained on 
your statute books, as the supreme law of the land, 
ever since. 

I will reserve, for the present, the comments 
which I have to make upon the faithful execu- 
tion of this law by the United Slates! whether 
it has been made to conduce to the "benefit and 
comfort" of the Indians, and protect them from 
^'injuries and oppressions," solemnly promi.sed by the 
treaty of Hopewell; and will proceed to show, by 
existing treaty stipulations, by universal custom, and 
by piinciples governing ihelaw of nations, (always 
held sacred,) that the Cherokees were the lau-ful 
on-iicrs of ihe /and of which they were in the oc- 
cupancy at the time the present claimant was eject- 
ed from the possession of his property on Pigeon 
Roost Bfai:ch, for which he uow claims indemnity. 
If 1 succeed in establishing this ownership satisfac- 
torily to the Board, I can apprehend no difficulty 
in obtaining an award for the full amount of the 
property taken from his possession in violation of 
law. 

The volume of Indian treaties, published by the 
War Department, contains fourteen treaties conclu- 
ded between the United States and the Cherokee 
nation, east of the Mississippi river, prior lo the 
year 1835; all of which acknowledge the validity 
of the title held by the Indians to the lands then 
in their occupancy. The first treaty negotiated 
wiih the Cherokees, as 1 have already stated, was 
concluded at Hopewell, on theKeowee, in the year 
1785 — two years afier peace was concluded between 
this county and England. (See Treaty Book, page 
8.) The first, second, and third articles go to es- 
tablish permanent peace and friendship between 
the contracting parties; the fi>urth anicle fixes 
the boundary of the Cherokee lands; and ihe fifth 
article provides for the prevention of any settlement 
being made by white people upon these lands, and 
fur the removal oi those who may have already 
made settlements. Article seven provides that, 
"it any citizen of the United Stales, or person 
under their proteciion, shall commit a robbery, or 
other capital crime, on any Indian, such offender 
or offenders shall be punished in the same manner 
as if the robbery, or other capital crime, had been 
committed on a citizen of the United States." 

Upon a conviction for the crime of robbery, 
under this article, what would be the punishment 
in our court.sl Why, the offender would be sen- 
tenced to restore the propeny laken, or pay the val- 
ue thereof, as set forth in the indictment". And a 
case in point is presented in the claim now under 
consideration before this board. 

The second treaty was concluded on the bank of 
the Holston, in July, 1791. (See Treaty Book, page 
34.) The second article of this treaty procuresthe 
pledge of the Cherokees that they "will not hold 
any treaty with any foreign pfiwer, individual 
State, or wiih individuals of any State." The 
fourth anicle recognises, and permanently estab- 
lishes, the boundary lines between the United States 
and Cherokee nation; and provides for certain pay- 
ments being made to the Cherokees, in full, for 
lands already ceded. Article seven is in this em- 
phatic language: " The United States solemnly 
^uaranti/ lo Ihe Cherokee nation all their lands 
not hereby ceded!" The remaining portion of this 
treaty is filled with the most so!emn assurances of 
protection to the tribe against all intruders; and 
with promises of indemnitv, should depredations be 
committed upon their lands or other property. 

The next treaty was concluded in Philadelphia, 



in the year 1794. (See page 39.) This treaty was 
intended to correct some misunderstanriingr whifh 
had arisen, on account of the treaty ot Holsion not 
being carried into execiuion, and for the purpose 
of more fully compensating the Cherokees for ihe 
lands they had relinquished lo the United Siaies by 
the two former treaties. The fourth treaty, which 
was concluded at Tellico, in the year 1798, pro- 
vides for the removal ol difficulties which occurred 
by delay, on the part of the United States, in having 
the C'heroiiee boundary properly defined and 
marked. The fourth article of this treaty cedes 
another portion of their lands for a valuable con- 
sideration; and the fifth article provides for the 
appointment of two commissioners — one by the 
United States, and the other by the Cherokee na- 
tion — for the purpose of nmning and marking 
the boundary tines. (Seepage 7H for this treaty.) 
The fifth ireatv wks also negotiated at Tellico, in 
the year 1804, "(page 108;) by which the Cherokees 
cede another small parcel of their lands. The 
sixth and seventh tieaties were concluded at the 
same place, in October, lb05. (See pages 121 and 
1'24.) These treaties lecognise and continue in force 
all lormer treaties, and also cei'e am'iher portion 
of the Cherokee lands. In the year 18(K), the next 
treaty was concluded at the ciiy of Washington, 
(page 13"2.) Ii contains another cession ot lands 
to the United States, and relates to the esiablish- 
ment of boundary lines between the Cherokee and 
Chickasaw nations. The next treaty arrange- 
ment was negotiated in the year 1807, and is call- 
ed an "elucidation of the convetuiun of Washing- 
ton," above relerred to. (See page 135.) 

To the next, or tenth treaty negoiiater* with the 
Cherokees, I will especially solicit the attention of 
the Board. (Seepage 185 ) Tliis treaty is based upon 
an ap]ilicati(m from the executive of the Siate of 
Soutti Carolina to the President of the United States, 
to extinguish the claim of the Cheiokee nation lo 
thai pan of their lands which lay within the botmd- 
aries of that State. The Cherokees, manifesting 
a desire to comply with the wishes of their brothers 
of Carolina, made the cession lo the Stale; but it 
was done in the usual way — l)y /ren/.y entered in/ o 
between commissioners onbehall of the United States 
and the Cherokee nation. If the Cherokee nation 
had refused to make the cession, will any one 
pretend to say that South Carolina would have 
attempted to eject them from the lands by forceI 
The United Slates Government not only extin- 
guished the Indian liile by purchase, (tlie only 
way it could he done without violating the law 
and existing treaty stipulations,) but became securi- 
ty for the paymtnt of ihe purchase-money by the 
Stale of South Carolina, under the provisions of 
the 2d article of this treaty. Another convention 
was held by the same parlies, on the same day 
Willi the foregoing, for the purpo.se of settling some 
corf]ii.-tiiig interests between llie Cherokee and 
Creek boundaries; appoiniing commissioners for 
the purpose of running said boundary lines; and 
entering into an agreement by which the United 
Stales promi.'cd to indnnnify cerlain individual 
Cherokees f(^r losses which ihey had sustained by the 
march of United Siaies troops through their nation 
(See pi'ge I8f; ) Anoiher treaty was concluded in 
Sepiember, 1810, by which an additional ces.sion 
of land was made tiy the Cherokees, and in whifh 
it is agreed that the boundary line shall be again 
ascertained and marked by commissioners. (Page 
199) 

In Ihe year 1817, the important treaty was 



negotiated between the United Stales and Chero- 
kee nation, by which the cppkij and t.owr.R towns 
of ihat nation agreed to sep. irate and become two 
disiinct communities — one" lo occupy ihe remain- 
ing country east of the Mi.ssissippi river, and the 
other exchanging their poriion of the lands ease, 
for a country west of ihat river. (Page 209.) This 
treaty again provides for the running ot the bound- 
ary lines of the ceded lands, and recognises the 
title of those unceded as vesting in the Cherokee 
nation east. 

The fourteenth and last treaty to which the 
eastern Cheroki es were a party, prior to the 
celebrated treaty of New Echoia, was negotiated at 
Ihe city of Washington, in the year jHI'l, by the 
lion. John C. Calhoun, Secretary of War, offi- 
cially authorized to act by tie President of the 
United Slates. (See page 205.) This treaty, orcon- 
veniion, stipulates for a final adju-tment of all un- 
setiled business under former treaties, li raiifies 
the cession and oilier provisidus made by the treaty 
of 1817; expresses the determination of the greater 
portion of the nation to retain possession of the 
country they then occupied; and, by the 5ih article, 
provides for permanently marking the boundary 
lines, wiih the solemn declaration made by the 
United States "that ihe leases which have been 
made under Ihe treaty of the 8ih July, 1817, of 
land lying within the portion of country reserved 
to the Cherokees, shall be void; and that all white 
people who have intruded, or may hereafter mirude, 
on the lands reserved for the Cherokees, shall be 
removed by the United States, and proceeded against 
according to the provisions of the act passed 30<A 
March, 1602, entitled 'An act to regulate trade and 
intercourse wiih the Indian tribes, and to preserve 
peace on the froniieis.' " 

I have now, with mu^h care, presented a faith- 
ful history of the negotiations entered into between 
ti is Government and the Cherokee Imiians east, 
from the year 1785, through a period of half a cen- 
tury, up to the year 1835. They embrace all the 
treaty stipulations existing in the year 1830, when 
an injunciion was issued by the State of Georgia, 
by which ceriain Cherolices were driver^ from 
their lands and possessions; and not one word or 
sentence can be found to legalize or justifv the act. 
The silemn guaranty given by the United States 
to the Cherokee nation, by the 7th article of the 
treaty of July, 1791, was still in full force and vir- 
tue; and the 5th article of ilie treaty then the last 
neg(itiated — thai of 1819— pledged ihe faith of the 
United Slates to sustain and defend this guaranty, 
by an appeal tothe intercourse law of 1802. 

Here, then, we have the full recognition, by the 
Government of the United States, in the year 1830, 
of the absolute title of the Cherokees to the lands 
then. in their occupancy, of which they could not 
be di.spossessed except by purchase, made in pursu- 
ance of law, unless force was resorted to. The 
latter mode could not be adopted by one of the 
States without nullifying a law of the United 
Slates, and all the existing treaties (w hich are su- 
preme laws) concluded wiih the Cherokee naiion; 
and, in that case, the Government of the United 
Slates would have been bound to indemnify the 
Indians for the full value of the lands from which 
they wcie forcibly ejected. 

The British Government set us the example in 
adopting a humane and conciliatory policy towards 
the Indians; and alihough, as the discovering na- 
tion, it might have been done by her with much 
more impunity, in regard to the world's opinion, 



8 



than It could since have been effected, Great 
1 j^u" ne^er attempted to take an acre of their 
land by /orce; but, on the contrary, uniformly re- 
sorted to the alternative mode— thai of owrcArt^e. 
m the language of Judge Clayton, "she took pos- 
session of this country, subject to the right of con- 
quest —a right which every one knows confers 
upon the conqueror only the empire and the 2map- 
proprialed domain; but private property is held sa- 
cred. The learned judge, in this division of his 
oP'"'on. refers to the condition of (he country in 
1740, when the first agreement was entered into be- 
tween ;i/r. Oglethorpe, for the British Crown, and 
the Indians of Georgia. A statement of that prov- 
ince, sent home to the trade office in London, in 
that year, shows that "not an Englishman was set- 
Ued withm that district when the first colony of 
Ueorgia arrived. The country was then all cov- 
ered with woods. Mr. Oglethorpe agreed with the 
Indians, and purchased of them the limits men- 
tioned in the treaty." Except the charters, which 
granted all Georgia to Oglethorpe and his com- 
pany, this is "the first instrument or compact be- 
tween the ^ohites and the Georgia Indians. And 
what does It implyi "Does it not," says Judge 
Clayton, "incontesuibly show some kind of i!i/Ze in 
the Indiaosi If Savannah and the surrounding 
country were bought, is jt not proof that the seller 
had ttlle? And if he had title to that which was 
sold, did he not retain a title to that which he did 
not sein If, before Oglethorpe landed, while Geor- 
gia 'was then all covered with woods,' and in the 
exclusive possession of the Indians, they had mines 
which ihey used, or might have used, that did not 
tall within the cession made to Ogleihorpe, does 
any one believe that he could, by virtue of this 
treaty, (there being no other instrument in the 
way,) have restrained the Indians from the u'^e of 
those mines? I think no one can answer in the 
affirmative. Then, from that day to this, where is 
the treaty that is upon any other footingl If the 
Indians had the right then, when have they lost ill 
Oglethorpe, with his ceded territory, and with his 
company under the King's charter, was as much 
government of Geoigia as that now is under the 
present constitution; and if he could not divest 
the Indians of their right to dig gold on their lands 
not ceded to him, how can Georgia do it now, with 
no higher riijht— indeed, with precisely a similar 
rightl We have only to carry Georgia's present 
government back to that time, and leave out all the 
treaties we have had with ihe Indians since, and 
we have precisely the question above stated. De- 
riving our right from Great Britain, we do not pre- 
tend to claim any better title than she had; unless, 
indeed, it is Ihe genius of republics to be more 
grasping than monarchies— a principle, I trust 
that never will be admitted. The above reasoning' 
then, shows a time when the Indians had a right 
to the gold tound on their land If they have lost 
that right, it is certainly incumbent on the party 
who says he has acquired it, to show the deed by 
which it has passed. I conless 1 have looked for it 
in vain." 

I flatter myself that I have furnished complete 
and satisfactory proof, before this honorable Board, 
in the only existing law and treatv provisions which 
refer to the subject, that no such "deed" exists, and 
that the "title" remained unimpaired in the Chero- 
kees, up to the ratification of the New Echota 
treaty. And whilst I am in this part of my argu- 
ment, I will again call your attention lo that clause 
of the 22d section of the law of 1802, which de- ' 



clares that, when a presumption of title is in the 
Indian, Irom the fact of previous ownership, the 
hwrdcn of proof shall rest upon the white person, in 
all trials about the right of property, where In- 
dians and white people are the parties. 

Having now shown, by the proceedings of Mr. 
Oglethropein 1740, which I have cited, how the first 
fool hold was obtained on lands belonging to the Geor- 
gia Indians, (will call the attention of the Board to 
the King's proclamation of 1703, in order to show 
how the title of the North American Indians was re- 
spected by Great Britain. It reads as follows: 

"Whereas it is just and reasonable, and essential 
to our interest, that the several nations or tribes of 
Indians with whom we are connected, and Who 
live under our protection, should not be molested 
or disturbed in the possession of such parts of our 
dominions and territories as, not having been ceded 
or p\Li chased bij us, are reserved to them as their 
hunting grounds, we do therefore declare it to be 
our royal will and pleasure that no governor of any 
of our colonies do presume for the present, and 
until our further pleasure be known, to grant v:ar- 
romt of survey, or pass patents for any lands beyond 
the heads or sources of any of the rivers which 
fall into the Atlantic ocean, or upon any lands what- 
ever, which, not having been ceded lo or purchased 
by us, as aforesaid, are reserved to the said Indians, 
or any of them." 

The next clause of this proclamation asserts the 
same principles and policy in reference to the 
rights of ihe Indians, and expresses a determina- 
tion to protect them in these rights, which were 
afterwards adopted by this Government, and incor- 
porated in the act of 1802. In conclusion, it ordains 
as follows: 

"To the end that the Indians may be convinced 
of our justice and determined resoliition to remove 
all reasonable cause ofdisconteni, wedo, with the ad- 
vice of our pi ivy council, strictly enjoin and require 
that no private person do presume to make ; ny 
purchase from the said Indians; but that if, at any 
lime, any of the said Indians should be inclined to 
dispose of the said lands, the same shall be pur- 
chased only for us, in our name, at some public 
meeting or assembly of ihe said Indians, to be held 
for that purpose by ihe Governor of our colony 
within which they shall lie." 

I have taken up much of the time of this honor- 
able Board in referring to the treaties and laws of 
the United Stales, and the acts of Great Britain, in 
relation to the mode of acquiring the litle to lands 
occupied by the Indians of North America; and 
from these published documents I have established, 
beyond all doubt, that they held the tiile oi original 
occupancy, which neither Government, in a single 
instance, attempted to wrest from them or todeprive 
them of, except by purchase made according to law. 
Then what is the nature of this titlel and what 
portion of the land do they hold under ill This 
is a grave and important question, which has never 
been definitively settled or properly understood in 
this country; and I will introduce the authorities 
bearing upon this point, by a quotation from the 
opinion of Judge Clayton; because he formeily 
held a different opinion, and has taken much pains, 
in correcting his error, to present potent reasons 
for doing so. 

'An idea prevails," says the'judge, "that the 
mines and minerals of a country are separate and 
distinct from the interest of the land; and that the 
former always belong lo the sovereign. Now, noth- 



Bi> 14 8 



/>}/- 



ng is more erroneous; and this mistake has occa- 
ioned all the difficulty. 1 candidly own that I la- 
)ored under it myselt, and granted an injunction 
vith a view to settle the question; but when 1 came 
examine the subject, I found nothing to support 
uch an idea. On the contrary, I found everything 
vhich was calculated to satisfy me I was wrong. 
Not desiring my own views, by any means, to be 
:onsidered as authority, 1 shall speak, whenever I 
an, m the language of the law, as given to us by 
he best and most approved writers. Justice Kent, 
herefore, says: 

"'It is a fundamental principle in the English 
aw, derived from the maxims of the feudal len- 
jres, that the King was the original proprietor of 
ill the lands in the kingdom, and the true and only 
ource of title.— (-2 Black. Com., 51, 53, 86, 105.) In 
his country we have adopted the same principle, 
md applied it to our Republican Governmeni; and 
t is a settled and fundamental doctrine wiih us, 
hat all valid individual title to land within the Uni- 
ed Slates is derived from the grant of our own lo- 
;al governments, or from that of the United States, 
)r from the Crown, or royal chartered govern- 
nents, established here prior to the Pievoluiion.' — 
3 Kent's Com., 370, and the authorities there ci- 
ed.)" 

The title to the land, then, being in the Indian, 
he question is, What is landl "In its legal sig- 
lification," say Coke and Black.stone, "land hath 
m indefinite extent upwards, as well as downwards. 
Upwards to the sky,' is the maxim of the law; and, 
herefore, no man may erect any building, or the 
ike, to overhang another's land; and, downwards, 
whatever is in a direct line between the surface of 
my land and the centre of the earth, belongs lo the 
iwner of the surface, as is every day experienced in 
he mining countries; so that the word 'land' in- 
cludes not only the face of the earth, but everything 
ander it or over it; and therefore, if a man grants 
ill his lands, he grants, thereby, all his mines of 
netals, and other fossils, his woods, his waters, 
md his houses, as well as his fields and meadows. 
2 Black. Com., 18.) 

The Legislature and Executive of Georgia 
;eemed to have lost sight of all law and usage in 
elation to Indian rights, when they enacted laws 
inder which they surveyed and took possession of 
he Cherokee lands, and removed the occupants by 
vrits of injunction and attachment. They looked 
ipon the Indian title of occupancy as making the 
" herokees mere lessees of the Slate of Georgia, 
yhohad the power of restraining them'from injur- 
ng, or committing waste upon the freehold of the 
Stale, On this assumption of power, Judge Clay- 
on says: 

"If this be true, she can also prevent them from 
;utting timber beyond what is necessary for their 
ibsolute use, and from doing many things which, 
n legal language, is called 7/;ff5^e. Working mines 
:omes within that definition, and is of no higher 
njury to the freehold than any other species of 
yaste. But the truth is, the Indian title of occu- 
)ancy assimilates itself to no principle of the Eng- 
ish law, which gives (he right to stay waste, as it 
s called. It is analogous to no estate, upon condi- 
ion, which involves the relation of landlord and 
enant, remainderman or reversioner; and these 
ire the only three characters who can restrain 
araste. It must be a particular estate, to which 
;here is a definite limit, certain as to the time of 
;xpiration, which will entitle the holder of the free- 



hold to sustain the commission of waste. We all 
know what the renting of land means: it does not 
fall under this head. It is not every reversionary 
interest in lands that will give the right to restrain 
the tenant from committing waste. It is a well 
known fact that ihe state, as the source of all title, 
has a reversionary interest in every foot of land 
she grants out lo her citizens; for, if they die with- 
out heirs and intestate, their lands revert lo the 
state by virtue of the escheat jaw. Now, under this 
remote expectant interest, no one will contend the 
Legislature could restrain the good people of the 
state from digging gold on iheir lands. The state 
does not hold in remainder; for remainder is 'de- 
fined to be an estate limUed, to take effect and be 
enjoyed after another state is determined. There 
must be a particular estate created, certain and de- 
terminate, as for years, for life, or in tail; and re- 
mainder, being a relative term, implies ihat a part 
has been previously disposed of, for, where the 
whole is conveyed at once, there cannot possibly ex- 
ist a remainder; but the interest granted, whatever 
it may be, will be an estate in possession.' (2 
Blackstone's Commentaries, 1G5.) Everyone must 
perceive that this relation does not exist between 
Georgia and the Indians. 'An estate in reversion 
is the residue oi an estate left in the grantor, to com- 
mence in possession after the determination of 
some particular e.-tate granted out by him,' (2 
Black., 175.) Sir Edward Coke de-cribes a rever- 
sion to be the returning of land to the grantor ox 
his heirs, after the grant is over. Now, it is equal- 
ly clear that this e.'^tate does not apply to the case 
of the Indians; for, instead of Georgia being the 
grantor, and limiting a particular estate to the In- 
dians, which is to have a specific duration, the 
very reverse is true. The Indians are the origi- 
nal grantors, and reserve to themselves in the 
grant (to wit: the treaties) an interest which is un- 
limited as to time, and not to end without their 
consent. These are all the estates which can, by 
any possibilitji, be made to bear upon the question; 
apd it Hiay, with great confidence, be asserted that 
none other can be found. Their occupant title is 
unlimited as to duration; and, to them, is to all in- 
tents and purposes the same as a fee simple. They 
do not care what it is called, if you do not take it 
away by force, and will suffer them to retain the 
use and possession of it till they choose to part with 
it upon their free and voluntary consent. But we 
frequently attach wrong ideas to particular terms; 
and if it is understood, by the term occupancy, that 
it is such a title as will justify Georgia in remo- 
ving the Indians whenever she pleases, nothing can 
be more erroneous; for, according to the legal sig- 
nification of occupancy, as understood in the Eng- 
lish law, they will have a right to retain their land 
until they voluntaiily abandon or sell it. Black- 
stone, in describing the title to land by occupancy, 
says: 'It is taking the possession of those things 
which before belonged to nobody.' This, as we 
have seen, is the true ground and foundation of all 
property, or of holding those things in severalty; 
which, by the law of nature, unqualified by that of 
society, were common to all mankind. But when 
once it was agreed that everything capable of own- 
ership should have an owner, 'natural reason sug- 
gested that he who could first declare his intention 
of appropriating anything lo his own use, and, in 
con.^equence of such intention, actually took pos- 
session, should thereby gain the absolute property 
of it.' (2 Black.. \bS.) There is now no title by 
occupancy in England, and never was but one in- 



10 



stance, and that is now virtually destroyed by stat- 
ute. The case of the Indians in America comes 
the nearest to it of any we know of— hence it is so 
called; and, applying it to the definition above laid 
down, it isamuch more stubborn title than is usu- 
ally conceived. We have seen, also, that the first 
discoverer (Great Britain) so chose to consider it, 
and imposed no other condition or restriction upon 
it than the right of pre-emption on her part. This 
has been followed up by Georgia, by the other States, 
and by the United Stales; so that, as far as human 
action and decision can confirm and settle a ques- 
tion, this is at rest." 

Having now, 1 humbly conceive, clearly estab- 
lished before this Board, by the only treaty stipu- 
lations and law of the United States existing upon 
the subject, and by authorities which cannot be 
controverted, that the Cherokees held the title of 
occupancy to certain lands in Georgia in the year 
1830, and until it was extinguished by the treaty of 
1835; ihat this title was as good, and held as sacred 
in the hands of the Indians, as a fee simple held 
under patents from the United States; and that 
the gold mines discovered within the boundary of 
these lands were not a separate and disiinct prop 
eriy, but incorporated with the lands; I will 
proceed to establish the following points by testi- 
mony which, I apprehend, will be satisfactory to 
the Board: 

First. That the deposite gold mine on Pigeon 
Roost was claimed and occupied by Rogers (a 
Cherokee) in the year 1830. 

Second. That it was located within the bound 
aries of the Cherokee country, upon lands ceded 
by that nation to the United Stales by the treaty 
of 1835-'36. 

Third. That Mr. Rogers was forcibly dispos- 
sessed of this property by the authorities of the 
State of Georgia in the year 1830, and kept out of 
possession by the same power until the year 1838, 
"when the Cherokees surrendered possession of 
their entire country, under the provisions of the 
16th article of the New Echota treaty. 

It is in proof before the Board, that Governor 
Gilmor, of Georgia, under authority of a law of 
that Slate extending its jurisdiction over the Cher 
okee couniiy, issued a proclamation, requiring all 
Cherokees, engaged in digging gold on their own 
lands, to desist i'rom so doing. This proclama'ion 
being disregarded by the Cherokees, who claimed 
to be the rightful owners of the lands, a bill of in 
junclion was issued, a copy of which is also before 
you. By reference to this bill, you will find the 
name of the present claimant as one of the persons 
enjoined; and, upon his refusal to obey it, he was 
arrested on a writ of attachment, and dragged be- 
fore one of the courts of Georgia, sixty miles from 
the place of his operations. He was there fined, 
and threatened with imprisonment, and only es- 
caped the sentence by binding himself to obey the 
injunction, and cease operating in his mines. 
The proof of these allegations is before you in the 
testimony of James Law, clerk of ihe superior 
court of Hall county, by which the bill of injunction 
was granted; and in the testimony of ^. Chastain, 
deputy sheriflTof said county, who certifies that he 
"served a bill of injunction at the instance of Gov- 
ernor Gilmor, in the year 1830, upon Johnson K. 
Rogers and others, who were at thai time engaged 
in mining on Pigeon Roost Branch, in what was 
then called Hall (now Lumpkin) county, Georgia: 
that afterwards, in the same year, he arrested said 
Rogers and two others, by virtue of a writ of attach- 



ment placed in his hands by the Governor of the 
State, and conveyed them under a strong guard tc 
Watkinsville, Clark county, in the same State 
where the superior court was then in session. '1 hey 
were there arraigned before Judge Clayton, (who 
has since reversed the opinion then entertained;) 
and they were committed to jail until they paid the 
costs of arrest, which they did do. They were also 
compelled to give security for thfir appearance at 
tiie next term of the superior court of Hall county; 
but the court allerwards dismissed the case, upon 
the promise ol the prisoners to obey the injunction." 
This testimony is on file — see paper marked B. 

I have now proceeded so far as lo show that my 
client, Johnson K. Rogers, was in possession ol a gold 
mine in the year 1830, on landsthen belonging to the 
Cherokee nation; that he was a Cherokee, entitled 
by the laws and usages of the nation to occupy and 
work said mines; that he was forcibly dispos^essed 
of this properly by the authorities of Georgia in 
1830, and that he has since that time been kept out 
of possession. The testimony adduced to establish 
this position requires no explanation from me lb 
give it character before this tribunal. A "spolia- 
tion" has, then, been committed by theauihoritiesofa 
sovereign Stale upon the properly of the claimant, 
a Cherokee Indian; and how is ihe amount of the 
damages he has sustained to be asceriainedl and 
from whom, and in what manner, must he obtain 
indemnity 1 With regard to the former, I presume 
this Board will agree to be governed by a standing 
rule of law, and require nothing more than "the best 
evidence of which the nature of the case admits." 
The claimant in this case has complied with this 
rule, as far as it was in his power to do so. He has 
brought before you four respectable citizens of 
Georgia, who swear that they have a perfect knowl- 
edge of the mines on Pigeon Bianch, on which Mr. 
Rogers was operating in ihe year 1830. Their tes- 
timony is before you, in papers numbered 1, 2, 3, 
and 4. The first wiiness, Milton H. Gnthright, tes- 
tifies ihat he "was mining for gold on Pigeon Roost 
Branch in the year 1830 ; that said branch contains 
very valuable and rich gold deposite mines; that 
the portion he worked yielded him upwards of 2 
dwts. to the hand per day; that the oiher operatives 
made equally as much to the hand, and .«ome of 
them more ; that in June, 1830, after intruders from 
other States were removed by the United States 
troops, he saw J. K. Rodgers engaged in mining on 
this branch;" and he further swears that he "is con- 
fident, from his oicn knoxcledge, that these mines 
have been worked over four or five limes since 
1833, when he became a permanent resident of 
Lumpkin county, and that they have invariably 
yielded from 1 to 2 dwts. to the hand per day," 
{See testimony No. I.) 

The second witness, James Lamar, swears that he 
was "well acquainted with Mr. Rogers, the claim- 
ant, in the year 1830, who was then engaged in dig- 
ging for gold on Pigeon Branch; that he (deponent) 
was engaged in digging on same branch, and his mine 
yielded him 3 dwts. to the hand each day; and had 
intruders been kept ofFby the United States, more 
than that ainonnt could have been constantly made." 
This witness describes the richness of the whole 
branch; and "is certain, from the position occupied 
by Rogers, that, had he kept possession, the average 
to the hand would have greater than deponent's." — 
(See testimony No. 2.) 

The testimony of Leieis Ralston corroborates the 
statements of the preceding witnesses. He swears 
that he knows of his own knowledge, that, with or- 



11 



dinary industry and skill, the mine would and did 
yield at least 2 dwts. per day lo the hand, upon an av- 
erage of all the expenses and labor in preparing the 
same for work, including the loss of time by wet 
weather. — (See testiviony No. 3.) 

H. C, Tatum testifies that he worked a mine on 
Pigeon Roost Branch, during the latter part of the 
year 1829 and spring of 1830; I hat it was remaika- 
bly rich, yielding him from one to three penny- 
weights per day during the wliole time; that J. K. 
Rogers was engaged in mining at the same place, 
during the same period of time, and until he was 
forcibly removed by the authorities of Georgia. — 
{See tesiimomi, No. 4.) 

Here are lour respectable citizens of the United 
States, swearing positively to the value of the 
mines wrested from Mr. Rogers; and, taking their 
estimates, we have clearly established the full 
amount of our claim. The credibility of these 
witnesses stands before this Board un impeached 
and unimpeachable. They have been within the 
reach of cross-examination, ii desired by any party 
interested; but it has not been resorted to; and, al- 
though this case has been publicly before the 
Board for a considerable length of time, no rebut- 
ting testimony has been offered. We can, there- 
fore, claim the full benefit of all the testimony 
relevant to the case which we have adduced, under 
a rule of evidence everywhere respected. Who 
are the parties in this ca^e"? Why, the Uniied 
States, either on its own behalf, or as guardian for 
a sovereign State, and a Cherokee Indian, who 
charges that his property has been forcibly taken 
from him. Now, let us go back to the law of 
1802, section 22, and there we find the covenant: 
"That, in all trials about the right of properly, in 
which an Indian may be a party on one side, and a 
white person on the other, the burden of proof shall 
rest on the white person, whenever the Indian shall 
make out a presumpldon of title in himself, from 
the fact of previous ownership." The claimant 
in this case has not only made out a presumption 
of title to the property on Pigeon Roost, but has 
furnished incontrovertible proof to establish an ab- 
solute title, held in pursuance of law and treaty 
stipulations; and that he was ejected from his pos- 
session by white citizens of Georgia, acting under 
authority of the goveinmenr of that State. Will 
it be pretended that the various treaty stipulations, 
and the provisions of the intercourse law I have 
cited, guarantying protection and indemnity to 
the Indians, did not intend to protect these peo- 
ple again.st depredations committed by white citizens 
of a State Avhen acting under the authority of the 
executive of that Statel I apprehend that no one 
will say that the law or treaty-making power could 
be guilty of practising such an imposition upon the 
Indians. The United States constituted themselves 
guardians of the Indians by the law of 1802; and 
it was as much the constitutional duty of the 
Executive to cause that law to be faithfully exe- 
cuted when its provisions were infringed upon by 
the constituted authorites of H State, as when the 
act was perpetrated by individuals of the State. A 
mode is prescribed by this law, and by the various 
treaty stipulations I have quoted, by which the In- 
dians shall be remunerated for losses sustained by 
depredations committed by white persons. The Ifith 
section of the intercourse law enacts that, "irhere 
the property of any friendly Indian is ta.kcn o'c de- 
stroyed in the Indian country, the person convict 
ed of the offence shall be sentenced to pay to the In- 
dian to whom the property shall belong, a sum 



equal to twice the amount of the property taken or 
destroyed; and if the offender is unable to pay, the 
Uniied States promise payment out of the treasu- 
ry. And it goes still further: the last clause of the 
section provides, "that if such offender cannot be 
apprehened and brought to trial, the amount of 
such property shall be paid out of the treasury, as 
aforesaid." This is a high-sounding guaranty; 
but who is to arrest and prosecute the offiender to 
conviction, if he can be found 1 Most assuredly 
not the injured Indian; for he had nothing to do 
with the enactment of the law; had no compe- 
tent court to try iheoffTence; and, in the courts of 
Georgia, could not be a party to a suit brought 
against a white person. It niust be done by the 
Government of the United States, which has assum- 
ed the guardianship over the rights and property of 
the Indians, by the law providing punishment" for 
(he offence. The United States having refused or 
neglected to comply with the provisions of this 
law, and the stipulations of the several treaties al- 
ready existing, so far as the Cherokees were con- 
cerned, provision was made by the treaty of 1835 
"to pay and liquidate the just claims of the 
Cherokees upon the United States for spoliations 
of every kind, that have not been already 
satisfied under former treaties." The 9th and 
IGth articles of this treaty also recognize and con- 
tinue the original guaranty of the United States 
protecting the Cherokees in possession of their 
lands, and providing indemnity where ".spolia- 
tions" have been conmiitied. The IGth article, in 
stipulating for the protection of the Cherokees in 
"their possessions and property" for and during the 
term of two years after the ratification of the treaty, 
makes the solemn promise to those who may have 
been unlawfully dispossessed, that they shall again 
be put in posses.sion, "and placed in the same con- 
dition in reference to the laws of the State of Geor- 
gia, as the Indians that have not been dispossessed; 
and if this is not done, and the people are left un- 
protected, then the United States shall pay the sev- 
eral Cherokees for the losses and damages sustained 
by them in consequence thereof." 

The spoliation claims, for which payment is 
provided in the several articles I have read, were 
created under the provisions of the law of Congress 
and then existing treaties which defined the char- 
acter of such claims, and pledged the faith of the 
United States for their liquidation. But the treaty 
of 1835 has designated a special tribunal by which 
all the claims arising under, and provided for, by 
that treaty, shall be examined and adjudicated. 
This tribunal is the present Board, organized under 
the 17th article, which confers upon it powers of a 
high, delicate, and imposing character; within its 
legitimate sphere of action, they are equal to those 
possessed by the Supreme Court of the United 
States. It has the sole and exclusive jurisdiction 
over every claim arising under the treaty by which 
it has been created, and its decisions are made 
"final." No appeal can be made to any other tri- 
bunal known to the laws of the coimtry; and no 
department of this Government has a right to pre- 
scribe the boundaries of its jurisdiction, or review 
or alter its decrees when rendered. You are the 
commissioners composing the Board clothed with 
these stupendous powers. They are conferred 
by the joint action of the Uniied. States and the 
Cherokee nation. Yuur Board is the ojf.-piing of 
the two na'dons, made so by the words of the com- 
pact. Yon are, therefore, commissioners appointed 
on belialf of the Cherokees. as well as on behalf 



12 



of the United States; and the Indian claimants 
look to you as the ark of their safely, in the con- 
test in which they are now engaged to obtain their 
just rights. 

The treaty of 1785, negotiated fifty-seven years 
ago, obtains the concession from the Cherokees to 
the United States of the right to manage their af- 
fairs, under the specious declaration that it is done 
"for the benefit and comfort of the Indians, and for 
the prevention of injuries and oppressions." This 
protestation may have for some years been held 
sacred, but it gradually subsided; and, in conse- 
*quence of a series of "oppressions diHA injuries" in 
the year 1835 the last Indian was stripped of his 
birthright. The millions of acres of the choicest 
lands now embraced within the limits of four 
Slates of this Union, passed from the Cherokee na- 
tion into the hands of their oppressors, and they 
had not one acre left in the home of their fathers. 
This is not a flight of the imagination; but sober, 
serious, naked truth. They ceded (heir country 
because they could no longer inhabit it in peace; 
and a large portion of them were compelled to com- 
ply with the nation's part of the contract, at the 
point of the bayonet. How has that cantracl been 
executed on the part of the United States? Why, 
upwards of seven years have been suffered to 
elapse since its ratification, audit is still not com- 
plied with, although the Indians have been unceas- 
ing in their appeals to the Government for the 
payment of claims therein provided for. On 
behalf of the claimants whom 1 have the honor to 
represent before you, 1 ask a patient and attentive 
hearing. I appeal not to your sympathies; I ap- 
peal not to ytur pity; I appeal not to the kind feel- 
ings which I know you possess towards the In- 
dians; but I appeal confidently and boldly to your 
high sense of justice, to your exalted character for in • 
tegrity, honor,ability, and independence, which v/ilj 
always induce you, in the discharge of the sacred 
and responsible duties confided to your care, to do 
that which you believe to be right and just, regard- 
less of consequences. The fate of a people is in 
your hands, who believe they have been grievous- 
ly injured by the Government of the United States. 
They may again be rendered independent and hap- 
py, or beggared by your decrees; and their case 
claims your serious and deliberate consideration. 

In the case of Johnson K. Rogers, I humbly ven- 
ture the assertion, that a claim for a "spoliation" is 
made out, which comes clearly within the pale of 
your jurisdiction. It exhibits a depredation or 
trespass of the most aggravated character; and if 
it had been commuted by one citizen of a Stale 
against another, and the damages assessed by a 
jury of their countrymen, the amount awarded 
would more than double the intrinsic value of the 
property of which the plaintiS' was dispossessed. 
Mr. Rogers makes out his account for losses sus- 
tained through a period of .seven years and eleven 
months, extending from the lime he was dispos- 
sessed of his property (in June, 1830) to the 23d of 
May, 1838, when the Cherokees, under ttie 16ih ar- 
ticle of the treaty of 1835, were compelled to relin- 
quish the occupancy of their posscssiuns and prop- 
erty in the ceded lands, tie estimates his losses 
from the net profits accruing to him from the labor 
oi eight hands employed in woikinghis mines du- 
ring the time he was in occupancy. This is the 
usual mode adopted by Congress in awards 
ing indemnity, where Governmcni contracts have 



been violated by the United States; and a 
treaty is a contract which the Government can- 
not violate without indemnifying the injured 
party, in like manner, if no other mode of redress 
was prescribed by its provisions. But, in the pres- 
ent case, Mr. Rogers was in po.ssession of a valua- 
ble gold nsine, which, under existing treaties and 
laws of the United Stales, and the laws and usages 
of the Cherokee Nation, he had a right to occupy 
and work; and he might as well have had fifty 
hands employed as eight, and thereby proportion- 
ably have increased his claim for indemnity, by 
virtue of these laws and treaty stipulations, if the 
gold embedded under the surface of the earth, 
which he had the right to excavate, could have 
been collected in one great reservoir, it might have 
been weighed, and its value accurately ascertained; 
for, not like other minerals, it has a regular, fixed 
value, which neither increases nor diminishes by 
the change of the times; and, in that case, this hon- 
orable Board could not have avoided awarding in 
his favor for the full amoimt. But, this not being 
practicable, he has limited his claim to the profits 
which would have accrued to him by the labor of 
eight workmen; and this has been ascertained by 
the best mode that could be adopted under the cir- 
cumstances of the case. The law 1 have cited, 
and ihe testimony adduced, appear to me to be 
full, ample, and complete; every crevice is filled, 
and every joint is in its place; the credibility of 
the witnesses has not been questioned, and the evi- 
dence — which is "the best of which the nature of 
the case admits" — clearly proves that a spoliation 
has been committed, amounting, at least, to the 
sum of $23,338, for which we now claim an 
award. 

1 now submit this case into your hands, with 
the earnest invocation that, in "its consideration, 
you will have impressed upon your minds the im- 
portant and sacred character of your connexion 
with the Cherokee claimants; that you constitute a 
tribunal, from whose decrees, when rendered, there 
can be no appeal; that you will look upon the 
shattered remnant before you as a portion of that 
once proud and mighty people — the aboriginal 
owners of a country whose acquisition has con- 
tributed so much to the wealth and power of this 
great nation; that you will keep in mind the de- 
grading truth, ihSiX technicalities, whenever they are 
introduced into an Indian treaty, are intended to 
deceive the Indians; and that you will frown upon 
every attempt made by any department or func- 
tionary of this Government to force upon you a 
construction of this treaty other than is warranted 
by ths manifest intention and meaning of the In- 
dian party to the compact, at the time it was nego- 
tiated; that you will hold sacred that great princi- 
ple in international law which gives the benefit of 
all dovhts ani.\r\g in the interpretation of treaties to 
the vieaker party; and that, in making up your 
judgment, you will adopt the benign maxim of 
our law, which .says, "that it is belter that ninety- 
nine guilty men should escape than that one inno- 
cent man should suffer;" and, applying it to your 
suffering Cherokee suitors, say, tliat it is better ihe 
treasury shoulihc emptied than that the most humble 
among them should, on account of any technical 
exception or error in properly submitting the case, 
not obtain full, ample, and complete justice. 

S. C. STAMBAUGF 



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